Maricopa, County of v. Office Depot Incorporated

Filing 224

ORDER: IT IS ORDERED that Maricopa County's motion for reconsideration (Doc. 206 ) is denied [see attached Order for details]. Signed by Judge Dominic W Lanza on 12/13/19. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Maricopa County, et al.,

No. CV-14-01372-PHX-DWL

Plaintiff,

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v.

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ORDER

Office Depot Incorporated,

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Defendant.

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INTRODUCTION

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Pending before the Court is Maricopa County’s motion for reconsideration of an

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earlier order denying its motion to preclude testimony from Office Depot’s expert. (Doc.

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206.) For the following reasons, the motion for reconsideration will be denied.

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RELEVANT BACKGROUND

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On June 28, 2019, Maricopa County filed a motion to preclude Office Depot’s

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expert, Patrick Krivoshia, from offering the opinion that, under the CCSF contract,

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Maricopa County would have received an across-the-board discount of 20% on purchases

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before February 13, 2007 and an across-the-board discount of 5% on purchases after that

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date. (Doc. 171.) Specifically, Maricopa County argued that, because these 20% and 5%

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figures had “no basis in reality,” Krivoshia’s opinions were not “based upon sufficient facts

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or data” as required by Rule 702. (Id.)

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On October 4, 2019, the Court heard oral argument on an array of pretrial motions,

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including Maricopa County’s motion to preclude Krivoshia. (Doc. 205 [transcript].)

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During that hearing, Office Depot’s counsel argued that Krivoshia had “specifically

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identifie[d],” in his expert report, a particular set of pricing data (known as the “MC-OD9”

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data set) that provided the foundation for his 5% and 20% figures. (Id. at 69. See also id.

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at 78-79 [Office Depot’s confirmation that the MC-OD9 data set provides the factual

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foundation for Krivoshia’s opinion].) In response, the Court asked both parties why they

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hadn’t submitted that data set as an attachment to their respective briefs. Maricopa

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County’s explanation was that “we didn’t include it because [we] think it has no bearing to

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the issue that [Krivoshia] claimed his opinions were covering, the actual prices paid . . . .”

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(Id. at 85.) Office Depot, meanwhile, stated that “while we’re happy to provide it to you,

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the reason that we didn’t attach it to our brief is that it is literally thousands and thousands

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of lines of structured data. And given that there was no challenge to the substance of it, as

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we understood Maricopa’s challenge, we didn’t think it was relevant.” (Id. at 89.)

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On October 9, 2019, the Court issued a 48-page order that resolved an array of

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different motions in limine, expert preclusion motions, and other motions filed by the

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parties. (Doc. 203.) As for Maricopa County’s motion concerning Krivoshia, the Court

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concluded it should be denied because Krivoshia’s expert report stated that the MC-OD9

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data set “provided factual support for his decision to apply” the challenged discounts and

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“[t]hese references suggest Krivoshia wasn’t simply making up the 5% and 20% figures .

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. . and instead was grounding his opinions in historical pricing data.” (Id. at 33.) The Court

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did note it was “odd” that neither party had submitted the actual MC-OD9 data set as part

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of the briefing process but concluded that, because “Krivoshia asserted in his report that a

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particular data set provides the factual foundation for his opinions and Maricopa County

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hasn’t shown this assertion is inaccurate,” the proper outcome was to allow Krivoshia to

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testify and then allow Maricopa County to challenge his assumptions through cross-

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examination. (Id. at 33-34.)

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On October 23, 2019, Maricopa County filed a motion to reconsider the denial of

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its motion to preclude Krivoshia’s opinions. (Doc. 206.) In support of the motion,

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Maricopa County provided a copy of the actual MC-OD9 data set—which, contrary to the

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representations made by Office Depot’s counsel during oral argument, is less than one page

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long. (Doc. 206 at 8.)

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On October 24, 2019, Office Depot filed a notice of errata acknowledging that

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counsel’s statements during oral argument concerning the size of the MC-OD9 data set

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were inaccurate. (Doc. 210.) This notice also explained why counsel had a good-faith

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belief in the accuracy of the statements at the time they were made. (Id.)

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On October 25, 2019, the Court issued an order that, inter alia, “fully accept[ed]

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Office Depot’s explanation that the misstatements during the hearing were made in good

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faith” but ordered Office Depot to file a substantive response to the reconsideration motion.

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(Doc. 211 at 1-3.)

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On November 4, 2019, Office Depot filed its response. (Doc. 212.)

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On November 12, 2019, Maricopa County filed a reply. (Doc. 216.)

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ANALYSIS

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Maricopa County argues that reconsideration is warranted because (1) Office Depot

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made new arguments during the October 4, 2019 oral argument that “misled the Court into

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an erroneous ruling” and (2) the MC-OD9 data set “applied only to purchases of certain

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non-stock items by two of the many CCSF departments,” and the prices for these items

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were negotiated on an ad hoc basis, so the analytical gap between the MC-OD9 data set

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and Krivoshia’s opinions is too significant to pass muster under Rule 702. (Doc. 206; Doc.

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216.) In response, Office Depot argues that (1) a motion for reconsideration is an

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inappropriate vehicle for advancing such arguments because Maricopa County was aware

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of the MC-OD9 data set when it filed its original exclusion motion and (2) on the merits,

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the MC-OD9 data set adequately supports Krivoshia’s opinions because his report

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pertained to a hypothetical determination of what Maricopa County would have paid under

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the CCSF contract, rather than what Office Depot actually charged CCSF. (Doc. 212.)

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Motions for reconsideration should be granted only in rare circumstances.

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Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). Such motions

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should not be used for the purpose of asking a court “‘to rethink what the court had already

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thought through—rightly or wrongly.’” Id. (citation omitted). Indeed, reconsideration is

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an “extraordinary remedy” that is available only in “highly unusual circumstances.” Kona

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Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citations omitted). The

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Local Rules further state that a motion for reconsideration should be denied “absent a

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showing of manifest error or a showing of new facts or legal authority that could not have

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been brought to [the Court’s] attention earlier with reasonable diligence” and that “[n]o

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motion for reconsideration of an Order may repeat any oral or written argument made by

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the movant in support of or in opposition to the motion that resulted in the Order.” LRCiv.

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7.2(g).

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Given these principles, the Court agrees with Office Depot that the arguments now

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being raised by Maricopa County do not constitute a permissible basis for granting

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reconsideration. Although Office Depot’s failure to attach the MC-OD9 data set to its

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response to the exclusion motion was unfortunate, and although Office Depot’s counsel’s

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inaccurate statements during oral argument didn’t help things, the bottom line is that

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Krivoshia’s report clearly referenced the MC-OD9 data set. (Doc. 171-1 at 17 n.47.) Thus,

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to the extent Maricopa County believed the data set failed to provide an adequate

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foundation for Krivoshia’s opinions, it could and should have attempted to prove its point

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by providing the data set during the earlier briefing process.

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explanation during oral argument on October 4, 2019 for why it failed to do so—the

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relevance of the data set wasn’t apparent to it at the time (Doc. 205 at 85)—means the

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current motion must be denied. Reconsideration is an extraordinary remedy generally

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reserved for the discovery of new and previously unavailable information or authority, not

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the belated recognition of the relevance of existing information.

Maricopa County’s

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Finally, although the merits-based reasons for excluding Krivoshia’s opinions that

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Maricopa County develops in its reconsideration motion present a close call, the Court is

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not convinced they are so strong as to demonstrate that the October 9, 2019 order was

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manifestly erroneous. An expert opinion must be “based on sufficient facts or data.” Fed.

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R. Evid. 702(b). The Supreme Court has emphasized that “nothing in either Daubert or

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the Federal Rules of Evidence requires a district court to admit opinion evidence that is

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connected to existing data only by the ipse dixit of the expert. A court may conclude that

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there is simply too great an analytical gap between the data and the opinion proffered.”

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Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). See also City of Pomona v. SQM N.

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Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (“Joiner requires an expert to justify a

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foundational assumption or refute contrary record evidence.”). However, “[s]haky but

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admissible evidence is to be attacked by cross examination, contrary evidence, and

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attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th

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Cir. 2010). “Basically, the judge is supposed to screen the jury from unreliable nonsense

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opinions, but not exclude opinions merely because they are impeachable.” Alaska Rent-A-

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Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013).

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Here, Krivoshia’s invocation of, and reliance upon, the MC-OD9 data set

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adequately establishes that his opinion is not unreliable nonsense. His objective was to

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“develop independent opinions related to the extent to which Maricopa County . . . may

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have been overcharged for purchases of office products.” (Doc. 171-1 at 5.) His basic

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methodology was to make “a comparison between Maricopa’s total spending (net of

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rebates) under the L.A. County Contract and what those same items would have cost under

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the CCSF Contract.” (Id. at 13.) In reaching his opinion about what Maricopa County

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would have been charged under the CCSF contract, Krivoshia relied on MC-OD9, which

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is Office Depot’s pricing structure under certain contracts for certain goods during the

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relevant time. (Id. at 17 n.47.) This suggests Krivoshia’s opinion is not unreliable

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nonsense, but rather an attempt with some foundation in fact at estimating Maricopa

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County’s hypothetical outlays under the CCSF contract. (Doc. 212 at 10-12.) Maricopa

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County’s main point—these were not the prices CCSF actually paid—is certainly a strong

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basis for impeaching Krivoshia’s opinion, but it’s not a basis for excluding his opinion

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altogether.

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…

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…

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Accordingly, IT IS ORDERED that Maricopa County’s motion for reconsideration
(Doc. 206) is denied.
Dated this 13th day of December, 2019.

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